(Per : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. Leave to amend the prayer clause.
2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the orders dated 11th July, 2002 and 13th August, 2002 passed by the Regional Transport Officer, calling upon the petitioner to pay the differential amount of tax leviable on the petitioner in respect of its non transport series motor vehicles as well as the penalty imposed thereon, failing which action would be taken under section 12B of the Bombay Motor Vehicles Act, 1958 (hereinafter referred to as “the Act”) as well as the order dated 24th March, 2004, passed by the Transport Commissioner, whereby he has dismissed the appeal preferred by the petitioners against the said orders.
3. The facts stated briefly are that the petitioner corporation is engaged in the exploration of the oil and natural gas and has various drilling stations and oil rigs along with such other establishments throughout the territory of India. For the purpose of conducting its business, the petitioner corporation acquired a fleet of imported as well as indigenous vehicles, which were duly registered under various categories under the provisions of the Bombay Motor Vehicles Act, 1988 and the Bombay Motor Vehicle Rules, 1958.
4. It appears that on 2nd June, 2002, two of the petitioners' non-transport series vehicles were detained by the Officers of the respondent authorities at Songarh Check Post in Surat district on account of certain alleged discrepancies in the actual unladen weight vis-à- vis unladen weight as per the information noted in the registration book. The authorities carried out reassessment at the check-post in respect of said vehicles and raised a demand of Rs.5,39,960/- towards outstanding dues pertaining to tax, penalty, surcharge etc. Ultimately, the petitioner corporation was required to make payment towards the alleged demand to get its vehicles released.
5. Subsequently, by a communication dated 15th June, 2002, the Regional Transport Officer, Ahmedabad called upon the petitioner to get the unladen weight of the vehicles as per the list appended thereto determined at the nearby Sabarmati weighbridge and produce the same before the said office. It was further stated therein that at the time of checking there appeared to be discrepancies in the weight of the said vehicles and that the petitioner should submit information available with it as regards the said vehicles failing which the vehicles would be detained at the time of checking. Pursuant thereto, the petitioner along with a communication dated 5th July, 2002, submitted the available details with a request for carrying out reassessment of the tax requirement to enable it to deposit the additional tax necessary. Thereafter, by a communication dated 11th July, 2002, the Regional Transport Officer, informed the petitioner that in view of the statement submitted by the petitioner, penalty was required to be imposed upon the petitioner and called upon the petitioner to explain discrepancies in respect of the unladen weight of the vehicles in question. In response to the said communication, the petitioner, by a communication dated 16th July, 2007, brought to the notice of the Regional Transport Officer that ONGC had been a regular taxpayer for the vehicles and the tax had been paid as per the unladen weight recorded in the RC Books by his office. The discrepancies in the tax due and tax paid had come about because of change of tax formula from 1st August, 1995 and that the entries for unladen weight had not been corrected in the RC Books. It was further submitted that the said office had not taken into account the excess tax recovered in respect of other vehicles. It was accordingly contended that there was absolutely no justification for imposing penalties for non-payment/short-payment of taxes as the entries in the R.C. Books and assessment of tax liabilities, both had been made by the said office and that the total tax liability should also be taken into account the excess tax already received. It was also requested that necessary action be taken for waiving the penalty and taking into account excess payment already received.
6. Thereafter, by a communication dated 23rd July, 2002, the Regional Transport Officer informed the petitioner that its vehicles had been seized by the Motor Vehicles Inspector and it was found that there was a change in the weight of the vehicles, which was not within the information of the office and that the difference in the weight of the vehicles came to the notice of the authorities after the issuance of the notice to furnish the computerized slips, and thus, it was not possible to grant any relief in respect of the penalty.
7. Subsequent thereto, the petitioner, by a communication dated 5th August, 2002, requested the Regional Transport Officer to accept the residual tax by waiving penalty and adjusting the excess payment already received in case of some of the vehicles. By a communication dated 8th August, 2002, the petitioner informed the Principal Secretary, Transport that ONGC had been promptly and regularly making payments of tax as and when assessed and due. The discrepancies have come up on account of change in tax structure, effective from 1st August, 1995, which went unnoticed both by the Regional Transport Office as well as their logistics section. A request was again made for accepting the residual tax by waiving penalty and adjusting the excess payment already received. By the impugned order, dated 13th August, 2002, the Regional Transport Officer called upon the petitioner to pay differential amount of tax to the tune of Rs.53,20,890/- along with penalty of Rs.13,30,223/-, in all, an amount of Rs.66,51,113/-, within a period of three days, failing which action would be taken against it under the provisions of section 12B of the Act.
8. The petitioners by a communication dated 14th August, 2002, addressed to the Transport Officer requested him to intervene and to accept the residual tax by waiving penalty and adjusting the excessive payment already received. Subsequent thereto, the request came to be reiterated on 28th August, 2002, 11th September, 2002, 9th October, 2002, 14th October, 2002 and 17th December, 2002. By a communication dated 14th February, 2003 the Joint Transport Commissioner informed the petitioner that it’s request for giving relaxation in the amount of fine over the difference of tax amount cannot be granted.
9. On 10th March, 2003, the petitioner addressed yet another communication to the
Subsequently, vide communication dated 31st March, 2003, addressed to the Regional Transport Officer, the petitioner informed that it was making payment of Rs.11,82,358/- towards payment of penalty, under protest. On 14th May, 2003, the petitioner addressed a request/appeal for refund of penalty against road tax to the Transport Commissioner. It was stated therein that ONGC paid without prejudice to its submissions and objections an amount of Rs.11,82,358/- vide letter dated 31st March, 2003, towards the imposition/demand of penalty. The said payment was made without prejudice to its objections and submissions and while keeping its rights alive including the present request and the imposition of penalty be cancelled/dropped and/or waived. Various grounds were advanced therein for waiver of penalty and accordingly request was made for waiving penalty on non-transport series vehicles, imposed by the Regional Transport Officer and deposited by the ONGC and to consider the case of the petitioner for refund of penalty of Rs.11,82,358/-. The said letter appears to have been treated as an appeal and was numbered as Tax Appeal No.76 of 2003.
10. Subsequently, in the said appeal proceedings, the petitioner, along with a communication dated 27/30th June, 2003 furnished copies of various documents in support of its request for waiver of penalty and refund of such amount. By a notice dated 28th November, 2003, the petitioner was informed that its appeal was kept for hearing on 16th December, 2003 and was asked to remain present for hearing. On 16th December, 2003, the petitioner gave written submissions stating important questions of law and facts, which were required to be taken into consideration in the said appeal. Thereafter, by the impugned order dated 24th March, 2004, the Transport Commissioner dismissed the appeal preferred by the petitioner mainly on three grounds:
(i) Upon verification of the unladen weight of 58 vehicles belonging to the petitioner by comparing the weighment slips with the record of the respondents it was found that there were discrepancies. In respect of the vehicles in relation to which discrepancies were found a demand notice for recovery of differential amount with penalty at the rate of 25 per cent had been issued on 13.08.2002. There was no dispute as regards the unladen weight and as such the only question was as regards the penalty on the differential amount. Under section 18(1) of the Act, if any tax has not been paid in time by a person liable for payment thereof, the Taxation Authority may levy, in addition to the tax so due a penalty not exceeding 25 percent of the amount of tax so due. Thus, discretion is vested in the Taxation Authority to levy penalty within the limit prescribed. In the present case the penalty imposed is within the permissible limit, which has already been recovered, hence there is no question of refunding the same.
(ii) There is no provision for refund of penalty under section 9 of the Act.
(iii) The demand notice was dated 13th August, 2002, which was served upon the petitioner on 14th August, 2002, whereas the appeal was preferred on 30th June, 2003 and as such in view of the provisions of rule 29 of the Bombay Motor Vehicles Tax Rules, 1959 (hereinafter referred to as “the Rules) which prescribes a limitation of thirty days for preferring an appeal, the appeal is time barred.
11. Being aggrieved, the petitioners have filed the present petition, seeking the reliefs noted herein above.
12. Assailing the impugned order Mr. Pranav Trivedi, learned Advocate for the petitioner submitted that the impugned orders are based on presumptions not permitted by law and inferences not warranted by facts and are, therefore, unsustainable. It was submitted that the impugned orders made by the first respondent levying the penalty along with the amount of additional tax on the petitioner have been passed without application of mind as the discrepancies noted by the first respondent between the unladen weight actually measured and the unladen weight recorded in the R.C. Books were on account of error in verification of the documents by the respondent authorities, mainly the first respondent. At the time of the registration of the concerned vehicles, all the relevant and important documents like R.C. Books, manufacturer's invoice etc. and such other necessary documents which contain all particulars regarding the unladen weight as well as the other specifications of the vehicles were supplied by the petitioner corporation. All such particulars were also required to be furnished in Form-E as provided by the office of the first respondent at the time of the registration and thereafter the vehicles were also produced for physical verification, whereupon all the details were checked to the satisfaction of the respondent authorities. Therefore, there was no scope of any error or intentional mistake on the part of the petitioner corporation. It was contended that the first respondent ought to have considered the said aspect while quantifying the amount of penalty to be imposed over the amount of additional tax quantified after reassessment of the non-transport series vehicles of the petitioner-Corporation.
12.1 Attention was invited to the impugned order dated 24th March, 2004, to submit that in the said order the appellate authority has observed that at the relevant point of time when the non-transport vehicles had been registered, the respondent authorities through oversight had not recorded the weight of the attachment equipments etc. and as such the assessment had been made on the basis of the unladen weight as shown in the record. It was submitted that even according to the respondents, it was on account of an error on the part of the respondent authorities that the unladen weight had been wrongly recorded. Under the circumstances, there being no fault on the part of the petitioner, the respondent authorities were not justified in imposing penalty, that too, at the highest rate permissible. It was submitted that respondent authorities ought to have applied their minds and considered as to whether or not penalty should have been levied in the facts and circumstances of the present case. According to the learned counsel, considering the fact that the petitioner had paid the tax on the basis of the unladen weight recorded by the respondents, there was no justification for levying any penalty whatsoever, and that in any case the facts do not justify levy of penalty at the maximum rate.
12.2 Next it was submitted that second respondent was not justified in dismissing the appeal on the ground that it was time barred. Reference was made to the various communications addressed by the petitioner to the respondent authorities to submit that all throughout the petitioner had been making representations to the respondent authorities, which had been entertained by them. Under the circumstances, the second respondent was not justified in holding that the appeal is time barred. It was urged that this is a case where there is a gross abuse of the process of law, inasmuch as tax was short paid on account of the default on the part of the respondent authorities and not on account of any fault on the part of the officers of the petitioner. Thus, in a case where no penalty could have been levied the maximum permissible penalty has been imposed. Under the circumstances, this is a fit case for exercise of extraordinary powers by this Court for condoning the delay caused in preferring the appeal.
12.3 In support of his submissions the learned counsel placed reliance upon the decision of a Division Bench of this court in the case of “DR Industries Ltd. VS. Union of India”, 2008 5 GLR 3915, wherein it has been held that there may be extraordinary cases where assessees may not be in a position to challenge the order of the adjudicating authority before the appellate authority within the prescribed period of limitation. In such extraordinary cases where an assessee can show extraordinary circumstances explaining the delay and also gross injustice done by the adjudicating authority, the assessee may invoke the writ jurisdiction of this court. Hence, in cases where assessees have suffered gross injustice and they could not file appeals before the appellate authority on account of circumstances beyond their control, such assessee can invoke the provisions of Article 226 of the Constitution of India but, of course, not as a matter of right. It was submitted that aforesaid decision would squarely apply to the facts of the present case and as such this is a fit case where the court should exercise powers under Article 226 of the Constitution of India and condone the delay caused in preferring the appeal.
13. Opposing the petition, Ms. Maithili Mehta, learned Assistant Government Pleader, made reference to the provisions of section 18 of the Act to point out that the taxation authority is duly empowered to levy penalty for non-payment of tax not exceeding of 25 per cent of the amount of the tax due. It was submitted that in exercise of powers under section 18 of the Act, the taxation authority has levied penalty of 25 per cent on the differential amount of tax. It was submitted that section 14 of the Act makes provision for appeal against any order passed by the taxation authority within such time as may be prescribed. Such time is prescribed in rule 29 of the Rules, which lays down that any person aggrieved by an order of a taxation authority may prefer an appeal to the appellate authority within thirty days from the date of receipt of such order. In the facts of the present case, despite the fact that the taxation authority had passed the order on 13th August, 2002, the petitioner did not prefer any appeal within the period of limitation and filed the appeal at a highly belated stage, that is, on 14th March, 2003. It was submitted that there is no provision in the Act or the rules framed thereunder for condoning the delay caused in preferring an appeal and as such the second respondent was fully justified in holding that the appeal was time barred.
14. From the facts noted herein above, it emerges that by an order dated 13th August, 2002, the Regional Transport Officer levied penalty of Rs.13,30,223/- at the rate of 25 per cent of the differential amount of tax of Rs.53,20,890/- along with differential amount of tax. The facts also reveal that at the time of registration, the respondent-authorities had recorded the unladen weight of the vehicles in question in the R.C. Books. Subsequently, by virtue of an amendment in the Act, a change was incorporated in the manner of calculation of tax to be imposed on the vehicles covered under the category of the non- transport series vehicles. However, corresponding correction in terms of the amended provision was not made in the respective R.C. Books and accordingly, the petitioner was being assessed in relation to the vehicles in question on the basis of the unladen weight as shown in the R.C. Books instead of the correct weight, in terms of the amended provisions. It was only when two of the petitioner's vehicles were seized at Songarh Check Post that it came to the notice of the respondent authorities that there were discrepancies in the actual unladen weight of the non-transport vehicles of the petitioner and that recorded in the R.C. Books, whereupon the petitioner was called upon to furnish the details in respect of its non-transport vehicles. Upon furnishing such the details, it was found that there were discrepancies in the unladen weight of the vehicles as aforesaid, and, accordingly, the first respondent called upon the petitioner to explain as to why penalty should not be levied upon it. Thereafter, by the impugned order, penalty was levied at the rate of 25 per cent of the differential amount of tax. It appears that instead of challenging the said order within the prescribed period of limitation, the petitioner went on making representations to the respondent authorities for waiver of penalty and adjustment of the excessive payment already received. Various such representations were made from 14th August, 2002 to December, 2002 till by a communication dated 14th February, 2003, the Joint Transport Commissioner, Ahmedabad informed the petitioner that its request for relaxation in the amount of fine over the difference of tax amount cannot be granted. Subsequently, on 31st March, 2003, the petitioner paid the penalty amount under protest. Thereafter, on 14th May, 2003, the petitioner filed an application/appeal before the Transport Commissioner requesting him to consider the case for waiver of penalty on the non-transport series vehicles imposed by the RTO and deposited by ONGC and also requested to consider the case for refund of penalty of Rs.11,82,358/-.The second respondent treated the said application to be an appeal against the order levying penalty and, accordingly, after affording an opportunity of hearing to the petitioner, dismissed the appeal on the three grounds referred to hereinabove.
15. Considering the fact that the appeal has been dismissed, interalia, on the ground of limitation, the first question that arises for consideration would be whether the second respondent was justified in dismissing the appeal on the ground of limitation. It is only if the said question is answered in favour of the petitioner that the court would be required to venture into the merits of the other contentions raised by the petitioner.
16. Before adverting to the merits of the case, the relevant statutory provisions may be noticed. Section 14 of the Act makes provision for “Appeal” and reads thus:
“Appeal.- (1) Any person, who is aggrieved by any order of a Taxation Authority, may file an appeal before such person or authority, in such manner, within such time, and on payment of such fees, as may be prescribed.
(2) The appeal shall be heard and decided in such manner as may be prescribed.
Rule 29 of the Rules bears the heading “Appeals under section 14 to appellate authority”. Sub- section (1) thereof, interalia, lays down that any person aggrieved by an order of a taxation authority made under the Act may, within thirty days from the date of receipt of such order where any such person is a fleet-owner, appeal to the State Government and in any other case, to the Commissioner of Transport or Director of Transport, as the case may be. It may be noted that there is no provision under the Act which permits the appellate authority to condone the delay, if any, caused in preferring an appeal under section 14 of the Act nor have the provisions of section 5 of the Limitation Act been made applicable to proceedings under the Act. It is by now well settled that if the statute does not contain any specific provision for extension of the time prescribed for preferring appeal and if the provisions of section 5 of the Limitation Act, 1963 have not been made applicable to proceedings under the said Act, an appeal has to be preferred within the time limited under the statute and the appellate authority would have no power to condone the delay that has occasioned in preferring the appeal. However, in D.R. Industries Ltd. v. Union of India (supra), on which reliance had been placed by the learned counsel for the petitioner, a Division Bench of this court, in paragraph 19 of the said decision held thus:
“19. As regards the contention that there may be extra-ordinary cases where assessees may not be in a position to challenge the order of the adjudicating authority before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order, we are of the view that in such extra- ordinary cases where an assessee can show extra ordinary circumstances explaining the delay and also gross injustice done by the adjudicating authority, the assessee may invoke the writ jurisdiction of this Court. Hence, in cases where the assessees have suffered gross injustice and they could not file appeals before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order-in-original on account of circumstances beyond their control, such assessees can invoke the powers of this Court under Article 226 of the Constitution but, of course, not as a matter of right.”
On the basis of the aforesaid decision, it has been contended on behalf of the petitioner that in a case of this nature, where the imposition of penalty is totally unjustifiable and gross injustice has been done to the petitioner, the petitioner is entitled to invoke the powers of this Court under Article 226 of the Constitution of India.
17. In the light of the principles propounded in the above two decisions, the question that arises for consideration is as to whether this is a fit case for invoking the jurisdiction of this court under Article 226 of the Constitution for condoning the delay when the statute does not make any provision for condoning delay caused in preferring an appeal under section 14 of the Act.
18. It may be reiterated that rule 29 of the Rules makes provision for preferring an appeal against an order of a taxation authority within a period of thirty days from the date of receipt of such order. In the entire Act, there is no provision, which empowers the appellate authority to condone the delay caused in preferring appeal nor are the provisions of section 5 of the Limitation Act made applicable to proceedings under the Act. Thus, ordinarily an appeal preferred beyond the prescribed period would be barred by limitation, unless as held by this court in the case of D.R. Industries Ltd. v. Union of India (supra) extraordinary circumstances exist so as to enable the petitioner to invoke the jurisdiction of this court under Article 226 of the Constitution.
19. In the facts of the case, as noted hereinabove, the appeal has been preferred after a considerable delay. After receipt of the order of the taxation authority, the petitioner instead of availing of the statutory remedy of appeal under section 14 of the Act went on making representation after representation for waiver of penalty and adjustment of the excess amount already paid. It may be noted that the order imposing penalty had been made in exercise of powers under section 18 of the Act. There is no provision under the Act which empowers the taxation authority or any other superior authority to waive penalty levied in exercise of statutory powers. Thus, once, rightly or wrongly, an authority has exercised powers under the Act, the remedy would also lie under the relevant provisions of the Act, which in the present case was by way of an appeal under section 14 of the Act. It may be noted that the petitioner herein is the Oil & Natural Gas Corporation, which is a public limited company which is manned by highly qualified officers who have the necessary wherewithal to avail of the best legal advice. The petitioner is not an ignorant, illiterate and poor person to whom gross injustice has been done and is not in a position to avail of the remedy available under the statute. Viewed in the context of the aforesaid as well as the conduct of the petitioner in attempting to obtain waiver of the penalty levied under an order passed in exercise of statutory powers by making representations to the higher authorities, when it should have been well aware that such order can be reversed only in exercise of statutory powers of appeal, it certainly cannot be said that any extraordinary circumstances exist for invoking the extraordinary jurisdiction of this court under Article 226 of the Constitution. From the facts and circumstances noted hereinabove, it is amply clear that no extraordinary circumstances have been shown by the petitioner explaining the delay caused in preferring the appeal. For the reasons stated hereinabove, the sole ground put forth, viz., that the petitioner was making representations to the respondent authorities for waiver of penalty cannot be said to be sufficient ground for not preferring an appeal within the prescribed period of limitation. In the above view of the matter no legal infirmity can be found in the approach adopted by the second respondent in holding that the appeal was time barred, so as to warrant interference.
20. Having held that the second respondent was justified in dismissing the appeal on the ground of limitation, it is not necessary to delve into the merits of the other contentions raised on behalf of the petitioner.
21. For the foregoing reasons, the petition fails and is, accordingly, dismissed. Rule is discharged with no order as to costs.
(AKIL KURESHI, J.) (HARSHA DEVANI, J.) Umesh/